Opinion
2008NY050377.
Decided March 21, 2011.
New York County District Attorney Cyrus R. Vance, Jr. (Rachel Ehrhardt of counsel) for the People.
Law Offices of Douglas G. Rankin, P.C. (Douglas G. Rankin of counsel) for the Defendant.
The People move to relieve Defendant's attorney, Douglas G. Rankin, as counsel in this matter. The People's motion is based on the fact that this misdemeanor DWI proceeding has been pending for 2 years and 8 months, that the delays in this case have been primarily caused by Mr. Rankin's scheduling conflicts and that there is no reason to believe that Mr. Rankin will be able to try this case at any discernable point in the near future. The People's motion is opposed by Mr. Rankin and by the Defendant, Mr. Jones. For the reasons stated below, the People's motion is granted.
STATEMENT OF FACTS
In order to understand the basis for the People's motion, it is essential to review the history of the adjournments which occurred in this case. That history is therefore outlined here. On July 6, 2008, the Defendant was charged with one count of Aggravated Driving While Intoxicated, two counts of Driving While Intoxicated and one count of Driving While Ability Impaired by Alcohol. The Criminal Complaint alleges that at approximately 1:10 A.M. on that date, the Defendant operated a motor vehicle in an intoxicated condition on Varick Street in Manhattan and in a later blood alcohol test was found to have .236 of one percentum by weight of alcohol in his blood. After arraignment, the case was adjourned for the retention of private counsel and Mr. Rankin appeared as Defendant's attorney for the first time on July 11, 2008. The Defendant has apparently been at liberty after posting bail throughout these proceedings. The People and Defendant's counsel both estimate that the trial of this matter, when it eventually occurs, should take no more than two days.
See Transcript of proceedings in the instant matter, December 6, 2010, p. 4, l. 23 (statement of defense counsel Douglas G. Rankin); People's Memorandum of Law in Support of People's Motion to Relieve Defendant's Counsel, February 18, 2011, p. 8.
The case was adjourned for hearing and trial to November 17, 2008. The Record of Court Action notes that the People were ready on that date but that the Defendant was not ready and needed a copy of the police videotape which the People were directed to provide. The case was adjourned for hearing and trial to January 15, 2009. On January 15, 2009, the Record of Court Action indicates that the People were ready. Mr. Rankin submitted an affirmation asking for an adjournment for medical reasons until March 11, 2009. According to the People, however, Assistant District Attorney Erin LaFarge informed the Court on that date that she had spoken to Mr. Rankin on January 12 and he had informed her that he would not be available for eight weeks due to his "congested trial schedule".
References to the "Record of Court Action" in this decision refer to notations made by presiding judges in this case in the standard worksheet which is contained in the public court file. Notes by judges in these worksheets commonly contain universally understood abbreviations, such as "H T" (for hearing and trial) the Greek letter "Delta" (a triangle shape) (indicating a defendant), the Greek letter "Pi" or the letter "P" (for the prosecution), "OT" (on trial), "R" (indicating a party is ready) and "NR" (indicating a party is not ready). Abbreviations from the worksheet are spelled out here. An indication that a party is "ready" generally means that the party is ready to proceed to a hearing and trial or, after a hearing has been conducted, that a party is ready to proceed to trial.
See People's Motion to Relieve Counsel, Affirmation of Assistant District Attorney Rachel Ehrhardt, February 18, 2011 (hereinafter "People's Affirmation"), ¶ 5.
On March 11, 2009, according to the People, Mr. Rankin indicated that he was still not ready to proceed for medical reasons and asked that the case be adjourned to April 13, 2009. The Record of Court Action notes that the People were also not ready on that date and contains a question by the Court as to whether Defendant's counsel had a medical issue. The People submitted a Certificate of Readiness on March 12, 2009. The case was adjourned to April 13 and the Record of Court Action does not indicate why a hearing and trial did not occur on that date. Mr. Rankin asserts that the People were not ready on that date. On April 21, Mr. Rankin submitted an affirmation saying that he was engaged in trial on another matter and requesting an adjournment to May 5, May 19 or May 27. The case was adjourned to May 21 and the People indicated that they were not ready on that date.
See People v. Robert Jones, Procedural History; chart prepared by the People outlining the history of the instant matter, Exhibit "A" to People's Affirmation.
See Affirmation of Douglas G. Rankin in Opposition to Motion to Disqualify, March 7, 2011 (hereinafter "Defense Counsel's Affirmation") ¶ 4.
On July 9, according to the Record of Court Action and the People's Affirmation, the People and Mr. Rankin announced their readiness for hearing and trial but a part was not available. The case was adjourned to September 21. On that date the Record of Court Action indicates that the People were ready but that Mr. Rankin was engaged in trial on another matter. On October 26, Mr. Rankin submitted an affirmation saying that he was engaged in trial on another matter and requesting an adjournment until December 7, 2009. The Record of Court Action indicates that the People announced that they were ready on October 26. The case was then adjourned to November 30.
According to Mr. Rankin's Affirmation, on November 30, 2009, "the prosecution was not ready." Judge Ferrara, who was presiding over the case in "Jury 13" on that date, however, placed the following note in the Record of Court Action: "Defense Counsel's schedule precludes trial today. Court directs Defense counsel to be ready on next date or have substitute counsel appear to try the case". The case was adjourned to February 22, 2010. On February 22 23, the Record of Court Action indicates that the People were not ready because their arresting officer was not available. The Record of Court Action indicates that the Defendant was ready on February 22. The case was adjourned for hearing and trial to April 21, 2010. On April 21, the People announced ready. Mr. Rankin did not appear but submitted an affirmation of engagement. The case was adjourned to June 14.
See Defense Counsel's Affirmation, ¶ 4 .
On June 14, 2010, the People announced ready but Mr. Rankin submitted an affirmation saying that he was engaged in trial on another matter and requesting an adjournment until July 8. Judge Larry Stephen who was presiding over the case in Part 1 on that date wrote in the Record of Court Action: "Spoke with defense counsel Rankin and said he was to be in court and ready on July 7 or he will be relieved".
On July 7 the case was heard in Jury Part 1 where Judge Melissa Jackson was presiding. According to the transcript of the proceedings on that date, when the case was called, Mr. Rankin was not present and had not submitted an affirmation of engagement. The People recounted the history of delays in the case and asked the Court to relieve Mr. Rankin as Defendant's counsel. The Court asked that the Defendant inform Mr. Rankin that he was required to be present and ready for trial on the following Monday and said that the Court would call Mr. Rankin and provide him with the same direction. The Court said that it was possible that Mr. Rankin might be held in contempt if he did not appear on that date. Judge Jackson noted that Mr. Rankin had been required to appear at 9:30 A.M. and that it was ten minutes before 11:00 A.M. Judge Jackson penned the following note in the Record of Court Action on that day:
No defense attorney. No affidavit of engagement. Defense attorney's firm called to say defense attorney was engaged in Queens. No fax. (abbreviation indicating "greater than") 2 years old. Court informed Defendant that he should let his attorney know the court is ordering him to be present and ready for trial on July 12, 2010.
Addressing the Defendant, Mr. Jones, Judge Jackson said:
I am concerned for Mr. Jones. You have a right to have your own attorney. But there comes a point when the Court has to say this can't keep going on. Two years is an awfully long time. I'm sure from your own prospective [should probably read "perspective"], you would like to have some resolution of this case. See Transcript of Proceedings in Instant Matter, July 7, 2010, p. 4, ll. 16-21.
On July 12, Judge Anthony Ferrara was presiding in Jury Part 4. He wrote the following note in the Record of Court Action:
The transcript of proceedings on that date indicates that Judge Burke was presiding when the case was called. The Record of Court Action, however, indicates that Judge Ferrara was presiding. The Assistant District Attorney who was present during these proceedings, Ms. Ehrhardt, also informed the Court and Mr. Rankin that she recalls that Judge Ferrara was presiding at the time. The transcript of the proceedings on the following date, July 13, 2010, also refers to the prior day's proceedings as having occurred before Judge Ferrara. The Court has thus assumed that it was Judge Ferrara rather than Judge Burke who presided on this date.
9:30 A.M. No defense attorney. 12:45, defense counsel here at noon. Left to go to Kings County case. Put over to 2:15 P.M.
2.15 P.M., People ready, case called. Case called 2:25 P.M. No defense attorney.
4:15 P.M. No defense attorney. Defendant says his attorney is on way. 3rd call.
Defense counsel appears 4:35 P.M. . . . Defense counsel is not on trial or engaged for the remainder of this week. Court directs defense counsel Rankin to proceed to trial tomorrow. . . . Defense counsel is directed to proceed to hearing.
The transcript on that date reflects these delays and contains an extensive colloquy between the Court, Mr. Rankin and the Assistant District Attorney, Ms. Ehrhardt. The transcript indicates that the Court was about to adjourn at the end of the day but waited for Mr. Rankin to arrive. See Transcript of proceedings on the instant matter, July 12, 2010, p. 3. Mr. Rankin indicated he would not be ready for trial until August. The judge said that parts were not available in August due to renovation work at the Manhattan Detention Complex and judicial vacations.
Mr. Rankin said that he was scheduled to begin trial on a two and half year old case in one week, and could not proceed to trial before that because he needed time to prepare for this upcoming trial. Ms. Ehrhardt indicated that, based on a conversation she had with the assigned assistant in that other case, she did not know whether Mr. Rankin's other trial would indeed begin in one week. Mr. Rankin recounted the history of the adjournments in the instant matter, noting that the case had been adjourned at various times both because the People and the defense were not ready and because no court parts were available. He told the Court that:
I am not prepared to go forward on his [the Defendant's] case because I have to go forward on another case, which I must prepare for. If you are directing me, I will show up and I will tell them I am not prepared, and my client has his Sixth Amendment rights, and I am not prepared to go forward. . . . I ve given a date specific to go forward. I will give another date specific, if the Court is unclear and unable to go forward on that date. I will not go to trial when I can't go to trial because I need to prepare for another matter Judge. See Transcript of proceedings in the instant matter, July 12, 2010, p. 8, l. 21 — p. 9, l. 1; p. 9, ll. 14-18.
With respect to the instant matter and Mr. Rankin's professed inability to try it at that time, the Court opined: "[y]ou had two years to prepare the case. It is enough time". Id., p. 11, ll. 16-17. With respect to Mr. Rankin's argument that he needed a week to prepare for his other upcoming trial and could thus not try the instant matter during that time, the Court said that "you should not have left the preparation of the July 19th trial until this week. We called you last week, on Thursday, and told you that Judge Jackson had directed you to be ready for trial on this case today." Id., p. 13, ll. 16-19. The Court said that it was adjourning the case until the following morning at 9:30 A.M. for hearing and trial before Supreme Court Justice Bruce Allen, in Part 45. The following colloquy then ensued:
The Court:. . . . The rules are clear. You are not actually engaged. You finished your hearing in front of Judge McKay. You are free tomorrow. I am directing you, on the record, to go to trial or have your client appear with substitute counsel prepared to go to trial tomorrow.
Mr. Rankin: Okay, Your Honor, I will appear there, but I am not going to be prepared to go to trial on the case. I don't believe that you can order me to actually start a trial when it is not — I am not prepared to go forward on it. Judge, I disagree with you on that, but I will go there. I will go there and I will indicate the situation to Judge Allen. Id., p. 14, ll. 4-15.
Mr. Rankin told Judge Ferrara that he would not be able to appear at 9:30 A.M. because of another appearance he had scheduled. Judge Ferrara said: "I am directing you to appear 9:30 A.M. No excuses will be accepted. Id., p. 15, ll. 1-2.
According to the People's Affirmation, they appeared in Part 45 and announced they were ready for hearing and trial at 9:30 A.M the following morning. Mr. Rankin arrived at 11:00 A.M. and informed the Court and the People that he was only ready for the hearing but not trial. People's Affirmation, ¶ 12. In discussing the previous day's colloquy before Judge Ferrara, the People noted (as reflected immediately supra) that Judge Ferrara had ordered Mr. Rankin to be ready for trial on the following day or have substitute counsel who could try the case. Mr. Rankin told Justice Allen:
First, Judge Ferrara did not order me to have another attorney appear if I couldn't go forward on trial today. And second, I made it very clear why I couldn't go forward. Transcript of proceedings, July 13, 2010, p. 3, ll. 18-21.
Mr. Rankin said that the delays in the case had been caused by both parties or the absence of court parts, that he had not sought to delay the case, that he had other trials which had prevented his appearances on earlier dates and that he would be ready for trial on August 5. Id. pp. 3-4. The suppression hearing commenced and concluded on July 13. People's Affirmation, ¶ 12. The transcript and the Record of Court Action on that date indicates the case was adjourned for a decision on Defendant's motion and for trial to August 5.
On August 5, the Record of Court Action indicates that the People were ready for trial and that there was a decision on Defendant's motion. The Record of Court Action indicates that the case was adjourned for trial until August 7. On August 7, the Record of Court Action indicates that the People were ready for trial but that the defense was not ready. Mr. Rankin indicated in an email to the Court that the case was adjourned on August 5, 2010 and September 7, 2010 because the People sought to reargue Justice Allen's suppression ruling. That assertion appears to also be supported by other portions of the record. The case was adjourned for trial until October 19.
See email from Douglas Rankin to the Court and the People, January 10, 2010.
On October 19, 2010, the Record of Court Action indicates that the People were ready for trial. According to the transcript of the proceedings on that date, Mr. Rankin informed Justice Allen that he was not ready for trial because of a hearing he was engaged in on another case which was scheduled to continue in two days and because it was possible he might be on trial in that case the following week. The case was adjourned for trial until November 18, 2010. See Transcript of Proceedings on Instant Matter, October 19, 2010.
On November 18, according to the transcript, the People appeared in Part 45 and announced that they were ready for trial. Mr. Rankin was not present and filed an affirmation of engagement. The People said that this was the 6th Affirmation of Engagement Mr. Rankin had filed in the case and the 13th time the People had announced that they were ready for trial. The People asked Justice Allen to relieve Mr. Rankin as Defendant's counsel. Justice Allen denied that request, noting that Mr. Rankin had explained his absences in Part 45 and that delays had been caused by the People's motion to reargue the suppression ruling. The case was adjourned for trial until December 6, 2010. See Transcript of proceedings, November 18, 2010.
On December 6, 2010, Mr. Rankin submitted an affirmation saying that he was engaged in trial in another matter and requesting an adjournment to December 22 or 23, 2010. According to the People, Justice Allen at this point telephoned Justice Wiley (before whom Mr. Rankin indicated he was engaged). After appearing before Justice Wiley, Mr. Rankin then appeared before Justice Allen on the instant matter. Mr. Rankin told Justice Allen that the trial before Justice Wiley, which he indicated he was going to be engaged in, would actually commence in two days and that he was therefore unavailable to try the instant matter because of preparation work he needed to do for that trial. He said that the case before Justice Wiley was a felony, which was even older than the instant matter, dating to 2007 and had been adjourned more times than the instant matter. Justice Allen then inquired as to why Mr. Rankin had scheduled two trials to start on the same date:
The Court: When did you know you would be going to trial on that one? [the case before Justice Wiley].
Mr. Rankin: When did I know? That case has been getting adjourned now for a while, Judge.
The Court: Did you call Ms. Ehrhardt and alert her that you might have to go out to Judge Wiley's part today?
Mr. Rankin: No, I did not speak to Ms. Ehrhardt.
The Court: Do you know she showed up today with a witness, as she did on countless other occasions?
Mr. Rankin: I did not know that. I am not sure why she would do that.
The Court: Well, because this case was adjourned for trial today. That was my understanding.
Mr. Rankin: I understand. We have been before you several times, your Honor, and you were very aware of my trial schedule. It is not as though I am on the beach somewhere, trying to avoid this trial. I am doing a murder case, which you are well aware of. I am doing another murder case that happened after that, or another trial case. I am a trial, trial, trial, trial, trial after trial attorney. . . . . Transcript of proceedings in instant matter, December 6, 2010, p. 3, l. 16 — p. 4, l. 11.
The Court and the parties discussed what a mutually agreeable adjourned date would be. In answer to Assistant District Attorney Ehrhardt's question of why he had scheduled the instant trial on the same date as a second trial, Mr. Rankin said that he was a solo practitioner and the only person who did criminal law work in his firm:
. . . [E]very day, I have multiple cases given for trial, every day. And basically, if one goes, it goes. If one doesn't, it doesn't. I take whichever one doesn't fall by the waist side [probably should read "wayside"]. So to answer the Assistant District Attorney's first question, I don't have the luxury of setting one trial case per day. I don't know many solo practitioners who do what I do, that have that luxury of setting one trial case per day. I do the best I can in terms of setting those cases on. Sometimes there's two on, sometimes there's three on.
The case was adjourned for trial to January 6. However, Mr. Rankin made clear that it was possible he might not be available for trial on that date since he was also appearing for hearing and trial on an attempted murder case before Justice Ingram in Kings County:
My plan is to make this case [the instant matter] take precedence, however, as you well know, in the reality of things if I go in there and the Judge decides that today is his day for making a "first time on" case go, I don't have a leg to stand on because this is a misdemeanor DWI. So I am just letting the Court know that. I will do my best. Id., p. 7, ll. 15-20.
In an email to the Court and the People, Mr. Rankin asserted (without further elaboration) that the adjournment on December 6, 2010, was due to "court congestion". See email from Douglas Rankin to the Court and the People, January 10, 2011.
On January 6, 2011, according to the People's Affirmation, the People arrived in Part 45 at 9:30 A.M. and Mr. Rankin arrived at 11:00 A.M. People's Affirmation, ¶ 17. The case was marked ready for trial and forwarded to Part 95 (this Court). The parties appeared before this Court for the first time on Thursday and Friday, January 6 7, 2011. Various pre-trial applications were discussed. At the conclusion of the proceedings on January 7, this Court adjourned the case, at Defendant's request, for a brief reopening of one aspect of the previous hearing which had been conducted in the case and then for jury selection on Monday, January 10th. Mr. Rankin indicated that he had a brief appearance in Queens on Monday and wanted to appear on that matter before appearing before this Court. This Court informed Mr. Rankin that he could appear in his Queens case on Monday morning and told the parties they would not be required to appear before this Court until 11:00 A.M on Monday.
Late in the day on Friday, January 7, this Court received a telephone call from Supreme Court Justice William Donnino, the Supervising Judge for the Criminal Courts in Nassau County. Justice Donnino informed this Court that Mr. Rankin was engaged before him in what was expected to be a 3 week long murder trial which was scheduled to begin on Monday, January 10 (the same date this Court had arranged for the parties to begin trial in the instant matter). Justice Donnino asked this Court to allow Mr. Rankin to try that previously scheduled murder prosecution and this Court agreed.
At the time, this Court was not aware of the previous delays which had occurred in this case. During two days of discussions with Mr. Rankin and the People on the instant matter on January 6 7, 2011, much of it on the record, Mr. Rankin never informed this Court or alluded in any way to the fact that he had a murder trial scheduled to begin before Justice Donnino on January 10th. Following Justice Donnino's phone call, this Court contacted the parties in the instant matter and told them that the trial of this matter would not proceed as previously scheduled on January 10th. The People then sent communications to this Court and Mr. Rankin outlining the history of adjournments in this case and objecting to any further delays.
In a series of emails sent by the parties to each other and this Court over the weekend and on the Monday following this Court's adjournment, Mr. Rankin offered his explanation for why he had apparently scheduled a trial before Justice Donnino and this Court on the same date and did not inform this Court or the People about that scheduling conflict. The following email by Mr. Rankin occurred in response to an earlier email from the People:
[T]he case [the instant matter] was not adjourned today [January 10, 2011] at the defense attorney's request but at the request of Justice Dinnino [mispelling in original] in Nassau County. . . . despite your use of the term "firm" trial date [apparently referring to the fact that the parties and this Court had agreed on Friday, January 7 to begin jury selection in the instant trial on Monday, January 10]no "do not get engaged" letter was ever issued in this case. The uniform rules for trials govern which cases take precedent [SIC] and those rules were always followed by my office. See email message from Douglas Rankin to this Court and ADA Kerry O'Connell, January 10, 2011 (emphasis added).
In a phone conference with the parties (which the Court believes occurred on January 10), this Court attempted to ascertain from Mr. Rankin when he might be available for trial in the instant case. Mr. Rankin said that he was confident he would be available by February 15, 2011 and the case was adjourned to that date for trial. The Court also indicated that it would conduct a conference call with the parties on January 26, 2011 to ensure that the previously scheduled trial date of February 15th would be adhered to. The Court conducted this call with the district attorney's office and Mr. Rankin on that date and Mr. Rankin again indicated that he would be ready for trial as scheduled on February 15th, 2011.
As noted infra, this Court has conducted a number of conference calls with the People and Mr. Rankin in this case over the past two months in an effort to schedule a trial. The Court believed these conference calls were not an optimal way to communicate with the parties since those calls did not allow for a record to be made and could not include the Defendant. However, these calls were the only way in which it was possible for the Court to communicate with Mr. Rankin in anything approaching a timely manner.
The week before this scheduled trial date, this Court received a phone call from Justice Patricia DiMango, who presides in Kings County Supreme Court. She told the Court that she had been assigned a number of Mr. Rankin's oldest felony cases so that the oldest of these cases could be prioritized for trial in Brooklyn. This Court understood that these old cases involved incarcerated defendants. She informed this Court that Mr. Rankin was going to be engaged in trying old felony cases (which the Court understood concerned incarcerated defendants) for an indefinite period of time. She said she could not estimate how long this would be but said that it might take 9 months or longer for these cases to be completed.
On February 9, 2011 the Court again conducted a conference call with Mr. Rankin and the People. During that call, the Court indicated that it appeared that Mr. Rankin would not be available to try the instant matter for an indefinite period of time and that consideration should be given to relieving Mr. Rankin as Defendant's counsel so the case could be tried by another attorney. The People indicated that they wanted to consider whether to make a motion to relieve Mr. Rankin as counsel.
Following the phone call in which this Court raised the possibility of relieving Mr. Rankin as counsel, Mr. Rankin contacted Justice DiMango's court attorney to (as the Court understands it) express his concerns about what Justice DiMango had told this Court about Mr. Rankin's upcoming trial schedule . On February 10th, Mr. Rankin was asked to and did appear before Justice DiMango to discuss his schedule as it related to the instant matter on the record. During the colloquy with Justice DiMango on the record, Mr. Rankin said that he had "about a hundred cases". He further said that he was about to be on trial with a defendant facing 25 years and had been awake since 4:00 A.M. See Transcript of colloquy between Justice DiMango and Mr. Rankin, February 10, 2011, p. 6.
With respect to the adjournment which this Court had granted Mr. Rankin to try his murder case before Justice Donnino on January 10, 2011, Mr. Rankin said that: "I know Judge Conviser didn't want me to do a murder case so I could do an out defendant DWI". Id., p. 7, ll. 23-24. Mr. Rankin said he was unable to estimate, even in general terms, how long the instant matter had been pending:
The transcript mistakenly spells this Court's last name as "Konviser" rather than "Conviser". There is a Supreme Court justice named Jill Konviser, who previously presided in Kings County and now presides in New York County. However, there is no dispute that the judge being referred to in the transcript of the proceedings before Justice DiMango on February 10, 2011 as "Judge Konviser" was not Judge Jill Konviser but this Court, Judge Daniel Conviser. Nor is there any doubt that the case being discussed in the colloquy cited here was the instant matter. The correct spelling of this Court's name is used here.
Justice DiMango: . . . [T]hat case [the instant matter] is two and a half years old. Would you agree?
Mr. Rankin: I don't know hold [should probably read "how old"] that case is.
Justice DiMango: It's more than a year old?
Mr. Rankin: Judge, I don't know, exactly, how old that case is. And, since we are on the record, and approximations are probably a bad thing, the answer is: I don't remember.
Justice DiMango: But, you have a case in Manhattan County that is a DWI misdemeanor that is more than a year old? That's your statement on the record?
Mr. Rankin: I don't know how old the case is. That's my statement for the record.
Justice DiMango: I didn't ask you that. I said; is the case over a year old?
Mr. Rankin: I would have to guess to give a correct answer. So, I'm going to say I don't know how old the case is.
At the time of this colloquy, the instant matter had been pending for 2 years, 7 months and 4 days. This on the record discussion followed, by one day, a conference call in which this Court informed Mr. Rankin that it would consider relieving him as counsel because of the numerous delays which had occurred in the instant proceeding.
On February 15, 2011, the previously scheduled adjourned date in this matter, the People and the Defendant appeared. Mr. Rankin did not appear. The People indicated that they wished to make a motion to relieve Mr. Rankin as counsel. The Court indicated they could file that motion by the end of the week, that Mr. Rankin would be afforded two weeks after that filing to respond and that the case would be adjourned for a decision on the People's motion to March 11, 2011. The Court indicated that since Mr. Rankin was not present, it would arrange for a conference call with Mr. Rankin and the People for later that same day to inform Mr. Rankin of the motion schedule.
Mr. Rankin submitted an affirmation on February 15, indicating that he was not able to be present because he was engaged on trial in a case involving an incarcerated defendant. He attached a copy of Part 125 of the Rules of the Chief Administrator of Courts entitled "Uniform Rules for the Engagement of Counsel" (hereinafter "Part 125 of the Uniform Rules"). He requested a two month adjournment, to April 15, 2011. Mr. Rankin said that on this date, April 15th, 2011, he would be prepared to "set a trial date". See Affirmation of Douglas G. Rankin, February 15, 2011, ¶ 2, (emphasis added).
The Court conducted a conference call later that day with Mr. Rankin and the People and informed Mr. Rankin of the motion schedule. He indicated that he was not able to have a substantive discussion both because he was busy preparing a summation on another matter and because he was talking on a phone where his conversations could be overheard by other people. The Court then set a written motion schedule with respect to the People's motion and mailed it to the parties. Subsequent to the setting of this motion schedule, Mr. Rankin asked for an additional few days to respond to the People's motion, asserting he had not timely received it. The Court extended Mr. Rankin's date to respond to the motion until March 8, 2010. Mr. Rankin timely filed his response on that date. The Court also pushed back the adjourned date of this case by an equivalent period of time until March 15, 2011. The People and Mr. Rankin's office were informed by telephone of this new adjourned date.
Mr. Rankin, in his response to this motion, submitted an affidavit from his client, Robert Jones. Mr. Jones indicated that he opposed the People's motion and is happy with the representation he has been provided by Mr. Rankin. In his affirmation filed on March 8, 2011, Mr. Rankin said that he would now be ready to commence this trial on April 18, 2011 at 11:00 A.M. In his affirmation, Mr. Jones indicated that this trial date would be fine with him.
See Affirmation of Robert Jones, March 8, 2011, Exhibit "B" to Defense Counsel's Affirmation.
On March 11, 2011, Mr. Rankin and his client appeared in this part. This was the original adjourned date set for decision on the People's motion. That date had been changed by the Court from Friday, March 11, 2011 until Tuesday, March 15, 2011 after Mr. Rankin had requested additional time to respond to the People's motion. Mr. Rankin's office, as noted immediately supra, had been informed of this new adjourned date. Neither this Court nor the district attorney's office were present when Mr. Rankin and his client appeared on Friday morning, March 11. This Court at the time was attending a meeting of the Office of Court Administration Criminal Law Advisory Committee. The People did not appear because they had been informed that the adjourned date of their motion had been changed to March 15, 2011. This was Mr. Rankin's first appearance in this mater since January 7.
No record was made of Mr. Rankin's appearance since neither the Court nor the People were present. Mr. Rankin did speak to this Court's court attorney. Mr. Rankin requested that the scheduling of the adjourned date on the People's motion be changed from Tuesday morning, March 15 until Tuesday afternoon, March 15 to accommodate his schedule. Although this conflicted with an ongoing trial this Court was conducting, the Court indicated that it would reschedule the adjourned date on March 15 from the morning until the afternoon to accommodate Mr. Rankin. Mr. Rankin also informed this Court's court attorney that he had an unanticipated break in his schedule and had some upcoming availability for trial although some personal appointments he had would have to be accommodated.
Mr. Rankin did not communicate his availability for trial to the People. He did not submit any information about his availability in writing. His affirmation, at this point, indicated that he would next be available for trial on April 18, at 11:00 A.M. On Monday, March 14, this Court issued a brief written decision, granting the People's motion to relieve Mr. Rankin as counsel and indicating that a decision containing detailed findings of fact and conclusions of law would follow. The instant decision and order contains those findings and conclusions.
The Court did not believe it was proper to consider the scheduling information which Mr. Rankin attempted to impart to this Court's court attorney in his phone call of March 11 in ruling on the People's motion. This information was conveyed without a record, without notice to opposing counsel, without an affidavit and in a manner which flatly contradicted Mr. Rankin's earlier affirmation. The Court did believe, however, that Mr. Rankin's upcoming schedule was obviously relevant with respect to whether he should be relieved. The Court therefore ruled on the People's motion based on the written submissions of the parties and invited Mr. Rankin to appear and make a record about his availability for trial on the March 15 adjourned date. Mr. Rankin did appear and made such a record, as noted immediately infra, on March 15. The Court considered this new information in determining whether to vacate its ruling relieving him as counsel and incorporated that new information into the instant decision.
On March 15, the scheduled adjourned date for a decision on the Defendant's motion, Mr. Rankin, Mr. Jones and the People appeared. Mr. Rankin announced that, notwithstanding this Court's order relieving him as counsel and the affirmation he had filed with respect to that motion indicating that he was next available for trial on April 18, he was now ready to try the case. He said he had an unanticipated break in his schedule. The Court asked the People whether they wanted to consent to have this Court vacate its order relieving Mr. Rankin as counsel. The People indicated that they did not. The Court asked the People whether they were prepared to immediately proceed to trial. The People indicated that they did not know what the availability of their witnesses might be since the case had been adjourned until March 15 for a decision on their disqualification motion and had not been adjourned for trial. They indicated that they were thus not immediately available to begin a trial.
Mr. Rankin reported that he had another case in Supreme Court the following week which might conflict with a trial but that he would seek to file an affirmation in that case. This Court, on March 15, was also engaged in an ongoing trial and was not available to try the instant matter. This Court declined to vacate its prior order relieving Mr. Rankin as Defendant's counsel. The Court explained, inter alia, that the history of the delays in the instant matter had led the Court to conclude that Mr. Rankin would not be available to try the instant case at such time as a trial date might be scheduled. The basis for this Court's determination not to vacate its prior order is explained in more detail infra.
According to OCA figures, as of February 18, 2011, Mr. Rankin represented defendants on 50 pending indictments, 43 of which were in Kings County. Of these indicted cases, 27 were over one year old at the time. These figures do not include unindicted matters Mr. Rankin is handling (such as the instant DWI case). As noted supra, in an appearance before Justice DiMango, Mr. Rankin estimated that he had 100 pending cases.
CONCLUSIONS OF LAW
Trial courts have the inherent authority to impose reasonable trial rules. In doing so, courts "should be hesitant to interfere in an established attorney-client relationship and may not do so arbitrarily". People v. Knowles, 88 NY2d 763, 766 (1996) (quotations and citations omitted). Such interference may be tolerable, however, "where defense tactics may compromise the orderly management of the trial or the fair administration of justice". Id. A defendant's attorney may be removed where a court makes findings to support a conclusion that an attorney's conduct has "delayed or disrupted the proceedings . . . or resulted in prejudice to the prosecution or the defense". People v. Espinal , 10 AD3d 326 , 329 (1st Dept 2004), lv denied, 3 NY3d 740 (citation omitted). "Such findings must demonstrate that interference with the attorney-client relationship is justified by overriding concerns of fairness or efficiency". Id., (quotation omitted). As discussed in the final part of this decision, appellate courts have approved trial court rulings relieving defendants' counsels in criminal cases because of excessive adjournments such attorneys have caused in numerous cases under factual circumstances significantly less egregious than what has occurred here.
This Court believes that Mr. Rankin must be relieved as Defendant's counsel in this matter. The dismal history of this case speaks for itself. Mr. Rankin has a simple problem: he is too busy to try all of the cases he has taken on in anything approaching a timely manner. Part 125 of the Uniform Rules provides that courts considering conflicting trial schedules should, "to the extent lawful and practicable" generally afford a priority in criminal cases first, to criminal cases in which a defendant is incarcerated, next to felony cases and finally to misdemeanor cases. See Part 125 of the Uniform Rules, § 125.1 (c). In the scale of these priorities, the instant matter, a misdemeanor case in which the Defendant is at liberty, ranks last. It has ranked behind Mr. Rankin's other priorities for what is now approaching 3 years. There is every prospect, moreover, (notwithstanding Mr. Rankin's most recent representations) that it will continue to languish into the indefinite future. As the People succinctly put it in their Affirmation: "there is no end in sight". People's Affirmation, p. 6.
The Court is aware that the Kings County Supreme Court has undertaken a special effort to attempt to bring some resolution to the oldest of Mr. Rankin's felony cases involving incarcerated defendants. As noted supra, it will apparently be a significant amount of time until all of the oldest of these cases will be tried. There is no question that such cases deserve a priority over the instant matter.
In the Court's view, any reasonable attorney in Mr. Rankin's position would have simply limited the number of cases he took on or arranged for other attorneys to try some of his pending matters a long time ago. The fact that he is unwilling to do that requires what, in this Court's view, is a clearly undesirable result: relieving Mr. Rankin as counsel over the objections of both Mr. Rankin and his client. The necessity for taking that action has arisen solely from the decisions Mr. Rankin has made.
Mr. Rankin offers four arguments for why he should not be relieved. First he points out that the delays in this case have arisen not only from his own conduct but from adjournments requested by the People or the courts. That is certainly correct. Indeed, in the Court's view, roughly a year of the delays in this proceeding can be chalked up to the standard issues which arise in many criminal cases. Mr. Rankin was engaged in trial on certain dates. On other dates, the People were not ready, either because their arresting officer was not available or for other reasons. There were dates on which a court part was not available. Mr. Rankin asserts that he had a medical issue for a brief time in early 2010. After Justice Allen's suppression decision in the summer of 2010, the People moved for a reconsideration of that decision. There is nothing unusual in any of those events. Nor, if those were the only issues arising in this case, would there be any reason to consider relieving Mr. Rankin.
Where the picture gets much more egregious is in the fact these delays have continued for what is now approaching 3 years and have arisen increasingly and now exclusively from one fact: Mr. Rankin cannot or will not take two days out of his schedule to try this matter. As the Court understands the record, there were two dates during the past 3 years on which Mr. Rankin has appeared in court, indicated he was ready for trial and then not been sent out for trial and revealed a scheduling conflict. One was on July 9, 2009, when no court parts were available. The other was on February 22, 2010 when the People's arresting officer was not available. Subsequent to February 23, 2010, the case was also delayed during the late summer and early fall of 2010 when the People sought to reargue Justice Allen's suppression ruling. Since October 19, 2010, as the Court understands the record, there has not been a single adjournment which has not been due exclusively to Mr. Rankin's schedule.
In his Affirmation, Mr. Rankin says that: "On nine (9) separate court dates the prosecution was the sole cause of the delay. . . ." This Court's review of the record can confirm that there was only one date on which the Defendant indicated that he was ready and the People were not ready: February 22, 2010. On that date, as noted supra, the People indicated that their arresting officer was unavailable.
Second, Mr. Rankin argues that he is indeed, as of this week, ready for trial. As noted supra, on February 15, he told this Court that he would be prepared to set a trial date on April 15. On March 8, he submitted an affirmation saying he was available for trial on April 18 (at 11:00 A.M.). On March 15, after being relieved as counsel in this case, he reported that he was ready for trial immediately. The Court does not find any of these conflicting assertions credible for a simple reason: Mr. Rankin has repeatedly indicated to this and other courts over the past three years that he will be ready for trial on specified dates. When those dates have come he has not been ready for trial. The Court is not asserting that Mr. Rankin is lying when he now says he is now ready for trial. There is simply no basis to believe, given the record in this case, that he will indeed now be available for trial when a trial date is set. Indeed, there is every indication that he will not be. Justice DiMango has indicated that Mr. Rankin will be engaged in trying cases in Kings County which have a priority over this matter under court rules for the foreseeable future.
With respect to the assertion which Mr. Rankin made on March 15 (2 years, 8 months and 7 days after the commencement of this case) that he is now ready for trial a couple of points deserve mention. First, this assertion occurred after he had been relieved as the Defendant's counsel. Second, it occurred on a date when it should have been obvious to Mr. Rankin that the People would not be available for trial. The case had been adjourned until March 15 for a decision on the People's motion, not for trial. There could thus not have been any expectation that the People would actually be available for trial on that date and in fact they were not available and had no idea when their arresting officer might be able to testify. Third, Mr. Rankin said that he had a scheduling conflict the following week. That conflict, according to him, was in Supreme Court, in a case where, under the rules, the case would obviously likely take priority over the instant matter.
Finally, this Court was not available to try the case during the week of March 15. The case could, of course, have been adjourned to another judge for trial. This Court could then have informed that judge about the history of the matter. As the record here clearly indicates, however, the delays which Mr. Rankin has caused in this matter have been unintentionally facilitated by the transfer of this case between judges. Any judge, including this Court, is properly extremely reluctant to relieve a Defendant's chosen counsel or sanction an attorney for excessive adjournments. It would be extraordinary, however, for a Court to relieve or threaten to relieve an attorney for excessive adjournments on the first date parties appeared before it, regardless of a case's history. Had this case been sent out for trial to another judge over the coming days, Mr. Rankin would have been clearly able to raise any scheduling conflicts he had as another reason to delay the trial without any real possibility of sanction. Indeed, as the record recounted here clearly reflects, he has done precisely that on multiple prior occasions when this case has been transferred between judges. This Court is convinced, given the entire record in this case, that Mr. Rankin would be no more available to try this case on any date this Court might set for a trial in the near future than he has been until now. At a certain point, the adjournments must end.
Next, Mr. Rankin points out that his client's right to select his own attorney will be compromised if he is relieved as counsel. That is also obviously correct. But, as the case law cited supra and infra indicate, that is not the end of the inquiry. A defendant's right to select his own counsel is not absolute. It must yield in appropriate cases to other compelling interests. As outlined in more detail infra, those compelling interests exist here.
Finally, Mr. Rankin argues that he has been "extremely effective in representing his client". Defense Counsel's Affirmation, ¶ 5. He cites his success in prevailing on a motion before Justice Allen to exclude statements allegedly made by his client on a videotape made by the police during his DWI examination. This motion was granted because of the People's failure to provide timely notice of these statements under CPL 710.30. This Court has no argument with the fact that Mr. Rankin, apart from the delay issues in this case, has provided effective representation to his client. Indeed, in his brief appearances before this Court he was well prepared and vigorously defended his client's interests. But the fact that Mr. Rankin may be a good lawyer should not permit his busy schedule to indefinitely delay this trial.
The Court would add other points which should be noted in Mr. Rankin's defense. There is no contention that Mr. Rankin has actually not been engaged in other matters during the years he has been filing affirmations of engagement in this case. As Mr. Rankin quipped during the colloquy on December 6, 2010, he has not been at the beach for the past three years. Nor does this Court believe that Mr. Rankin has deliberately delayed the instant matter in order to gain a tactical advantage for his client, although, as discussed infra, his conduct has had that effect. Finally, this Court credits the fact that Mr. Rankin believes that his conduct in this case over the past three years has been completely proper. Surveying the record in this case, Mr. Rankin honestly believes he has done absolutely nothing wrong.
Viewed from one perspective, Mr. Rankin's transgressions in this case have been innocuous. After all, there are worse things than an attorney who is busy. Indeed, given the demand for his services, Mr. Rankin is obviously from the perspective of his clients (including Mr. Jones) doing something right. It is important in the Court's view, however, to understand both how Mr. Rankin has comported himself during these proceedings and what impact his conduct has had on the persons and institutions he has interacted with. When those actions are scrutinized, it is apparent that Mr. Rankin's busy trial schedule has wreaked much more havoc than might be apparent from the fact that he simply has a lot to do.
First, given what will eventually apparently be a relatively simple two day trial, Mr. Rankin has wasted an extraordinary amount of the time of judges, court attorneys, assistant district attorneys, support staff from the district attorney's office, court clerks, court officers, court reporters, police officers (who apparently have been scheduled to testify on multiple days when Mr. Rankin was not available) and everyone else who has been engaged in processing his adjournments. He has also wasted a significant amount of his client's time. These wasted hours would be intolerable at a time when the state was flush with resources. They are particularly egregious at a time when the State and the court system are facing a fiscal crisis which demands that the court system make every conceivable effort to operate efficiently.
Second, Mr. Rankin has communicated with the courts in this case in a manner which, to put it charitably, has been less than completely informative. One example occurred on January 7, 2011. There, as noted supra:
— Mr. Rankin left this Court on Friday afternoon, January 7, indicating that he was ready to begin the trial of this matter on Monday, January 10 and had no scheduling conflicts. In reliance on those representations, trial was scheduled.
— On that same day, he then apparently contacted Justice Donnino before whom he was also engaged on trial on January 10 to let Justice Donnino know of the conflict.
— Justice Donnino then contacted this Court to ask that his murder trial take precedence over Mr. Rankin's DWI trial, which was proper under the rules.
— Mr. Rankin then asserted that he bore no responsibility for the conflict. It was Justice Donnino (not Mr. Rankin) who caused the adjournment.
— Moreover, this Court had no basis to feel aggrieved by the fact that Mr. Rankin had not communicated his scheduling conflict to this Court. This Court erred in not issuing a written order to Mr. Rankin to appear on the following day for trial.
There is obviously no rule which provides that an attorney is not obligated to appear for trial as directed by a Court absent a written order directing the attorney not to become engaged in another matter. Nor is there any rule which allows an attorney to dispense with the obvious common courtesy and obligation to inform courts and adversaries of scheduling conflicts so that trial participants do not schedule proceedings which will never occur.
The record of these proceedings provides numerous examples of instances in which Mr. Rankin has conveyed incomplete information to this and other courts. There is no point in recounting all of these examples again. When Mr. Rankin appears before this Court on the day after he is relieved as the Defendant's attorney and announces that he is now ready to conduct a trial, that statement cannot be considered in a vacuum. It must be evaluated in the light of the range of communications and actions Mr. Rankin has taken during the entire course of this litigation.
During the course of these proceedings, as outlined supra, Mr. Rankin has repeatedly failed to comply with court orders directing him to appear on specified dates and times and be ready for trial. Indeed, as reflected in the colloquy on July 12, 2010, it is Mr. Rankin's view that courts are simply not empowered to order him to try a case even when he is not otherwise engaged, if, in his sole discretion, he believes he needs whatever time a trial might consume to prepare for another matter. That is obviously not the law. If it were, any attorney could delay the progress of any trial for any period of time simply by asserting that he or she believed the time was needed to prepare for other matters. Part 125 of the Uniform Rules, which provides that engagement of counsel in another matter provides valid grounds for an adjournment, explicitly states that: "[e]ngagement of counsel shall mean actual engagement on trial or in argument before any State or Federal trial or appellate court, or in the proceeding conducted pursuant to Rule 3405 of the CPLR and the rules promulgated thereunder". Part 125 of the Uniform Rules, Section 125.1 (b) (emphasis added).
In this Court's view, it is also wholly inappropriate for an attorney to set firm trial dates on multiple cases on the same day which can only be tried by that attorney under circumstances where opposing parties in each of these cases reasonably believe that each of these trials will indeed commence on those dates. See December 6, 2010 colloquy cited supra. If an attorney believes that a case in which a firm trial date has been set is unlikely to proceed (because that attorney has other firm trial dates on the same date) it is incumbent upon that attorney to, at a minimum, inform his adversary about potential scheduling conflicts. Otherwise, as has occurred in this case on multiple occasions, an adversary will block out time to try a case, prepare for trial and schedule witnesses for no reason. A lawyer should not need a court order or the threat of sanctions to relay such basic information. Keeping courts and adversaries apprised of one's schedule is simply common courtesy.
The delays in this case have prejudiced the Defendant. Viewed from one perspective, of course, these delays, by prejudicing the People, may ultimately benefit the Defendant by impairing the ability of the People to prosecute this case. The Court also appreciates the fact that Mr. Jones clearly does not want Mr. Rankin to be relieved as his counsel. But Mr. Jones also deserves his day in Court. He has asserted his innocence and these charges have obviously put a cloud over his life. Allowing Mr. Rankin to remain on this case as his attorney would, in the Court's view, delay the matter indefinitely.
The delays in this case have obviously prejudiced the People. This has occurred and will continue to occur for as long as this case is further delayed for a number of reasons. First, the memory of the People's witnesses, on whom their case largely depends, will grow dimmer with each passing day. Second, even to the extent those memories remain fully intact, those delays will allow the Defendant's counsel to effectively impeach the testimony of the People's police witnesses. Defendant's counsel will obviously be able to argue that police witnesses who may have been involved in a large number of arrests and incidents over the past three years might have a hard time recalling specific details about this one arrest, which occurred long ago. As the People argue, these memory and perceived memory problems are more significant in a routine DWI arrest than they would be in a case involving a more serious crime in which the events at issue might be more memorable.
The People's witnesses might leave the police force at any time. Evidence might be damaged or lost. Given the dangerous nature of police work, as the People point out, it is always tragically possible that an officer may become unavailable. In People v. Bracy, 261 AD2d 180 (1st Dept 1999), lv denied, 93 NY2d 966, the Court held that "the danger of fading memories or the unavailability of witnesses" were "compelling concerns" which (among other factors present in that case) merited the relief of an attorney who had caused long delays in a case due to repeated adjournments. Unfair prejudice to the People is one ground a court is entitled to rely upon in making a determination to relieve a defendant's counsel. People v. Hall, 46 NY2d 873 (1979).
Among all of the interests which have been negatively impacted by the delays in this case, however, one interest, in the Court's view, is most significant: the interests of the people of this city. Mr. Johnson, of course, is presumed innocent. It is worth noting, in fact, that according to his criminal history record he has never been convicted of a crime. He has also faithfully attended these proceedings, even on numerous dates when Mr. Rankin has been absent. The accusation in this case, however, is that he registered a .236 of one percentum by weight of blood alcohol after being apprehended operating a motor vehicle while intoxicated. That is almost three times the legal limit of .08%. Mr. Jones stands accused of operating a motor vehicle in a condition where, if the charges against him are true, he placed the safety of anyone who might have randomly happened onto his path on that day in jeopardy.
The Court fully acknowledges that Mr. Rankin's other pending felony cases are more serious than the instant matter. But this matter is important also. If Mr. Jones is not guilty of these charges then he has unfortunately stood accused of a crime he did not commit for what is now years longer than he should have. But if he is guilty, the criminal justice system has been prevented from imposing an appropriate sanction for what is now approaching 3 years. Both of these possible results are unacceptable.
To the extent the justice system seeks to prevent serious crimes from recurring (and in this Court's view, operating a motor vehicle at three times the legal blood alcohol limit for intoxication on the streets of Manhattan is a serious matter) it has been prevented thus far from having its most important effects in this case. The justice system has been unable to punish, deter, rehabilitate or incapacitate Mr. Jones. If he is indeed guilty of this crime it is not primarily the court system, the prosecution or the defendant whose interests have been compromised. It is the people of this city.
"Determinations regarding questions of the timely and proper trial of a case are squarely within the power and jurisdiction of the trial court." Lipari v. Owens, 70 NY2d 731, 733 (1987) (citation omitted). Decisions in which appellate courts have upheld the removal of attorneys because of excessive adjournments are obviously dependent upon the unique facts of each case. Appellate decisions on this question understandably don't generally provide the extensive procedural details recounted here. As noted supra, however, a review of such appellate rulings indicates that trial court decisions relieving defense attorneys because of excessive adjournments have been routinely upheld in factual scenarios which were apparently significantly less problematic than that here.
In People v. Nevitt, 209 AD2d 341 (1st Dept 1994), app denied, 85 NY2d 864 (1995) the discharge of the Defendant's fourth attorney was held proper "because defendant's case had been pending for over a year, and counsel indicated that he would not be able to try the case for several months". In Bracy, supra, the Court held that it was proper for the trial court to relieve Defendant's counsel when, after adjournments due to engagements by counsel for more than a year, the Court denied a further adjournment of "many months" duration in order to allow counsel to complete a federal trial of "extraordinary length". In People v. Thomas , 47 AD3d 415 (1st Dept 2008), lv denied, 10 NY3d 772, the First Department held that the trial court properly relieved Defendant's counsel over the Defendant's objections "after making findings on the record detailing counsel's pattern of prolonged unavailability for trial due to other engagements and illness".
In People v. Childs, 247 AD2d 319 (1st Dept 1998), app denied, 92 NY2d 849, the Court upheld the trial court's dismissal of the Defendant's preferred attorney based on "overriding concerns of fairness or efficiency". In that matter, the case had been pending for 18 months and was ready for trial when Defendant's counsel requested a 30 day adjournment due to his arthritic condition. Observing that defense counsel had been ill for some time and that there was no objective basis to believe he would recover in 30 days, the Court held that his removal was proper. A defense attorney may be relieved when he is unavailable for trial for a prolonged period by virtue of other engagements. Espinal, supra, 10 AD3d at 330. That is precisely what has occurred here.
Mr. Rankin has every right to build a busy law practice. His clients have every right to retain him. But those interests are not limitless. They do not trump the combined interests of the court system in operating with some modicum of efficiency; the interests of the district attorney's office in having the opportunity to fairly present their cases and the interests of the residents of New York City in having a justice system which protects them. As the Court of Appeals explained more than 30 years ago, "[t]he efficient administration of the criminal justice system is a critical concern to society as a whole". People v. Arroyave, 49 NY2d 264, 271 (1980).
For all of these reasons, the People's motion is granted and Mr. Rankin is relieved as Defendant's counsel. The Court talked to Mr. Jones on the record on March 15 about the next steps regarding his representation and anticipates that a determination about who will represent him can be finalized on the next adjourned date, March 30, 2011.